Shares

March 27, 2013 10:55PM (UTC)

During oral arguments on Wednesday, five of the Supreme Court justices, including Anthony Kennedy, expressed skepticism at the constitutionality of the Defense of Marriage Act, the law preventing same-sex couples from receiving federal benefits.

Justice Anthony M. Kennedy, widely considered the swing vote on the divided court, joined the four liberals in posing skeptical questions to a lawyer defending the law, which defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and programs.

“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments, suggesting that the question should be left to the states. He disagreed with the contention that the federal law simply created a single definition for federal purposes, noting that same-sex couples are not treated the same as other married couples. “It’s not really uniformity,” he said.

Ruth Bader Ginsburg said that DOMA effectively created two types of marriage, "Full marriage and the skim-milk marriage.”

But before it can decide to strike down the law, the first question is whether the Court will decide that it has the jurisdiction to rule on the law on the merits. In this particular DOMA case, United States v. Windsor, a U.S. District Court and the 2nd Circuit declared the law unconstitutional, and the Obama administration agreed. But since the federal government is a party in the appeal, there is a question about whether there is even live dispute for the Court to rule on. (Also at issue is the standing of the Bipartisan Legal Advisory Group, the legal arm of the House of Representatives, which took up the defense of DOMA when the Obama administration decided it no longer would.)

The Justices seemed somewhat at odds over whether they do have the authority to go ahead with this case, so the possibility remained that the Court in the end could choose not to decide the merits of the law’s validity. That portion of the argument focused on just who in Congress, if anyone, could be in court to defend a federal law when the executive branch chose not to do so.

Justice Kennedy seemed to be leaning toward finding that there did exist a live controversy — between the government and Mrs. Windsor, over whether she is entitled to a refund of an estate tax she paid on her late spouse’s estate. But Chief Justice John G. Roberts, Jr., commented that the Court had never ruled on a case in which all of the parties involved agreed — as he suggested would be the case with the government and Ms. Windsor sharing their opposition to DOMA.

Roberts wondered if there was "any case where all parties agreed with the decision below," but a court "nonetheless" decided that the party had standing in the case. Roberts and Kennedy also both asked why the Obama administration continues to enforce DOMA. “I don’t see why [Obama] doesn’t have the courage of his convictions,” Roberts said.

Jillian Rayfield

Jillian Rayfield is an Assistant News Editor for Salon, focusing on politics. Follow her on Twitter at @jillrayfield or email her at jrayfield@salon.com.